State of West Virginia v. Kyle John Schober

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

FILED

September 2024 Term

November 12, 2024

_____________

released at 3:00 p.m.

C. CASEY FORBES, CLERK

No. 23-68 SUPREME COURT OF APPEALS

OF WEST VIRGINIA

_____________

STATE OF WEST VIRGINIA,

Plaintiff Below, Respondent,

v.

KYLE JOHN SCHOBER,

Defendant Below, Petitioner.

________________________________________________

Appeal from the Circuit Court of Berkeley County

The Honorable Bridget Cohee, Judge

Criminal Action No. CC-02-2021-F-235

AFFIRMED

________________________________________________

Submitted: October 9, 2024

Filed: November 12, 2024

Jonathan T. O’Dell, Esq. Patrick Morrisey, Esq.

Assistant Public Defender Attorney General

Public Defender Corp. Andrea Nease-Proper, Esq.

23rd Judicial Circuit Deputy Attorney General

Martinsburg, West Virginia Charleston, West Virginia

Attorney for the Petitioner Attorney for the Respondent

JUSTICE BUNN delivered the Opinion of the Court.

SYLLABUS BY THE COURT

1. We review a circuit court’s decision on a motion to modify conditions

of probation for an abuse of discretion.

2. The West Virginia Cannabis Act, West Virginia Code §§ 16A-1-1

to -16-1, does not supersede West Virginia Code § 62-12-9 or prevent a circuit court from

requiring a probationer to refrain from using marijuana as a condition of his or her release

on probation, even when the probationer has qualified as a “patient” and obtained an

identification card pursuant to the Cannabis Act.

3. “W. Va. Code, 62-12-9, as amended, permits a trial judge to impose

any conditions of probation which he may deem advisable, but this discretionary authority

must be exercised in a reasonable manner.” Syllabus point 6, Louk v. Haynes, 159 W. Va.

482, 223 S.E.2d 780 (1976).

i

BUNN, Justice:

Petitioner, Kyle John Schober, appeals an order of the Circuit Court of

Berkeley County denying his renewed motion to modify conditions of his probation to

allow his use of medical cannabis in accordance with the West Virginia Medical Cannabis

Act (“Cannabis Act” or “Act”). Mr. Schober contends that the circuit court erred by failing

to conclude that certain provisions of the Act supersede West Virginia Code § 62-12-9,

which governs conditions of release on probation. He claims the circuit court further erred

by devising a twelve-part test that he could not satisfy. The State maintains that the circuit

court properly denied Mr. Schober’s motion because he must comply with federal law

while on probation, and the federal Controlled Substances Act prohibits his possession of

medical cannabis. We conclude that the Cannabis Act does not supersede West Virginia

Code § 62-12-9, the circuit court did not abuse its discretion by directing Mr. Schober to

provide evidence relevant to his motion to modify, and because Mr. Schober’s possession

of cannabis violates the Controlled Substances Act, the circuit court properly denied Mr.

Schober’s requested modification.

I.

FACTUAL AND PROCEDURAL HISTORY

The underlying criminal conviction in this case arose from a traffic stop in

September 2021. Mr. Schober was pulled over when a Berkeley County sheriff’s deputy

observed him driving left of center. When the deputy approached Mr. Schober’s vehicle,

1

he noticed a marijuana odor, searched the vehicle, and found six baggies of marijuana, four

plastic containers of tetrahydrocannabinol (“THC”) extract, two baggies of cocaine, and a

scale. The deputy filed a criminal complaint in the Magistrate Court of Berkeley County

charging Mr. Schober with two felony counts of possessing a Schedule I or II controlled

substance with intent to deliver,1 and two felony counts of transporting a Schedule I or II

controlled substance into the state.2 The matter was bound over to circuit court, and the

State offered a non-binding plea agreement whereby Mr. Schober would plead guilty by

information to one count of possessing a Schedule I or II narcotic with intent to deliver,3

and the State would recommend that Mr. Schober receive a one-to-fifteen-year sentence,

suspended in favor of five years of probation. The State also agreed to dismiss the

1

See W. Va. Code § 60A-4-401. Before the circuit court, the State contended

that, based on the quantity of the controlled substances, their packaging, and the presence

of a scale, it would be able to prove Mr. Schober’s possession with intent to deliver cocaine.

Also, in his memorandum filed in support of his motion to modify his probation conditions,

Mr. Schober conceded that the amounts of marijuana, cocaine, and THC in his possession

were consistent with distribution and admitted to selling these substances to support his

own drug use.

2

See id. § 60A-4-409. The officer’s complaint alleged that Mr. Schober’s

operator’s license and vehicle registration reflected a Virginia residence. At his plea and

sentencing hearing, Mr. Schober’s counsel stated that his current address was in West

Virginia. The date of Mr. Schober’s relocation to West Virginia is unclear.

3

The information alleged a violation of West Virginia Code

§ 60A-4-401(a)(i), which classifies the crime of possessing a Schedule I or II narcotic with

the intent to deliver as a felony offense that carries a sentence of one-to-fifteen years

imprisonment and/or a fine of $25,000. Although the Legislature amended West Virginia

Code § 60A-4-401 in 2022, the 2020 version was in effect at the time of Mr. Schober’s

arrest. Notably, the 2022 amendments did not alter the penalty applicable to the crime of

possessing a Schedule I or II narcotic with the intent to deliver.

2

remaining charges and to refrain from filing a recidivist information, if applicable. After

conferring with his lawyer, Mr. Schober accepted the State’s plea offer.

The circuit court scheduled a plea hearing for December 20, 2021, and

ordered the county probation department to prepare a pre-plea investigation report. During

the plea hearing, Mr. Schober’s counsel disclosed that, at the time of his arrest, Mr. Schober

used approximately one gram of cocaine per day and over an ounce of marijuana per week.

Mr. Schober stated that he was not using any drugs or alcohol at the time of the hearing,

and he planned to attend Narcotics Anonymous meetings.

The circuit court accepted Mr. Schober’s guilty plea to one count of

possessing a controlled substance with the intent to deliver, sentenced him to one-to-fifteen

years imprisonment, and suspended the sentence in favor of five years of supervised

probation. As special conditions of Mr. Schober’s probation,4 the court required Mr.

Schober to enter an intensive, outpatient drug treatment program and submit to random

drug screens. The court explained to Mr. Schober that a positive screen would violate his

probation and subject him to the possibility of serving his full sentence.5 The circuit court’s

4

See id. Code § 62-12-9(b) (permitting court to impose conditions on

probation in addition to those identified in West Virginia Code § 62-12-9(a)).

5

The circuit court’s conviction and sentencing order does not reflect these

special conditions. We have found no error where an order imposing probation fails to

3

December 23, 2021 conviction and sentencing order reflects Mr. Schober’s sentence and

imposes the standard terms and conditions on his probation.6

While serving his term of probation, Mr. Schober applied for a medical

cannabis identification card pursuant to the Cannabis Act, W. Va. Code § 16A-5-1. To

obtain an identification card, the Act required Mr. Schober to provide certification

confirming his diagnosis of a “serious medical condition,” as defined by the Act, from a

physician listed in the physician registry established by the West Virginia Bureau for Public

Health,7 Office of Medical Cannabis (“OMC”).8 Id. § 16A-2-1(a)(30).9 To obtain the

necessary certification, Mr. Schober had an online appointment with Dr. Serge Cormier,

an obstetrician-gynecologist (“OB/GYN”) listed in OMC’s physician registry. Dr. Cormier

reflect all its terms, but the record shows the petitioner received notice of all the terms in

the presence of counsel. See Louk v. Haynes, 159 W. Va. 482, 491, 223 S.E.2d 780, 786

(1976). However, the better practice is to include all the terms and conditions for probation

in a written order.

6

See W. Va. Code § 62-12-9(a) (establishing conditions for release on

probation).

7

The Bureau for Public Health is a division of the West Virginia Department

of Health. See id. § 16A-2-1(a)(3) (defining “Bureau”); id. § 5F-2-1a(c)(1)(A) (identifying

the Bureau for Public Health as part of the Department of Health).

8

See id. § 16A-10-1 (authorizing Commissioner of Bureau for Public Health

to establish Office of Medical Cannabis “to assist in the administration and enforcement of

the provisions” of the Cannabis Act).

9

See also id. § 16A-4-1 (providing requirements for physician registration);

id. § 16A-4-3 (addressing certification issued by registered physician).

4

certified that Mr. Schober suffered from Post Traumatic Stress Disorder (“PTSD”), a

qualifying “serious medical condition” under the Cannabis Act. Id. § 16A-2-1(a)(30).10

The OMC approved Mr. Schober’s application on March 18, 2022.

Based on advice from his probation officer and his lawyer, Mr. Schober filed

a motion to modify the conditions of his probation on April 25, 2022,11 approximately four

months after his sentencing, seeking to modify the conditions of his probation to allow his

use of medical cannabis. The circuit court scheduled a hearing on the motion and directed

Mr. Schober to file verified documentation to address twelve issues generally related to his

criminal record, medical history, probation, and receipt of a medical cannabis card.12 With

court permission, Mr. Schober filed, under seal, a memorandum in support of his motion

10

See also id. § 16A-2-1(a)(25) (defining “Post-traumatic stress disorder” as

“a diagnosis made as part of continuing care of a patient by a medical doctor, licensed

counselor, or psychologist”).

11

Mr. Schober subsequently moved to have the motion filed under seal,

which the circuit court granted.

12

Specifically, the circuit court directed Mr. Schober to address: (1) the

nature of Mr. Schober’s offense; (2) his past record; (3) his past substance use disorder

issues, including treatment; (4) the ailment Mr. Schober receives medical cannabis to treat;

(5) the frequency of his contact with his physician for that condition; (6) other potential

factors, including mental health issues; (7) the availability and advisability of other

medications; (8) the impact of medical cannabis on Mr. Schober’s rehabilitation and

sentencing goals, and on community safety; (9) the impact of medical cannabis on deterring

Mr. Schober from future criminality; (10) facts and circumstances a court normally

considers for modification of probation terms; (11) a valid medical cannabis card—verified

for authenticity; and (12) Mr. Schober’s history of lawfully using medical cannabis—

verified with authentic medical records.

5

to modify and various exhibits intended to address the factors identified by the court.13 At

the hearing on his motion, Mr. Schober offered additional documents regarding his health

history.14 He also testified, explaining that he had been prescribed psychiatric medications

for various conditions, not including PTSD, from the age of six to sixteen, when he opted

to use cocaine and marijuana instead of his prescribed medications. According to Mr.

Schober, around 2018, and after he was repeatedly robbed at gunpoint while living in a

“trap house,” he received a PTSD diagnosis from Dr. Don Lee. Mr. Schober did not see

Dr. Lee after 2018, and he received no treatment for PTSD. Mr. Schober did not produce

records reflecting a PTSD diagnosis from Dr. Lee.

By order entered on June 10, 2022, the circuit court denied Mr. Schober’s

motion, observing that Mr. Schober had not sought treatment for his PTSD other than a

single video-conference call with Dr. Cormier through a website that advertised “doctors

will determine whether a customer qualifies for a medical [cannabis] card after a quick

10-15 minute evaluation.” The court also found that Dr. Cormier summarily accepted Mr.

Schober’s application for a medical cannabis card without requiring a PTSD diagnosis by

13

The exhibits included (1) an email in which Mr. Schober attempted to

address the court’s factors; (2) the physician’s certification prepared by Dr. Cormier; (3) a

copy of the OMC list of registered physicians, which included Dr. Cormier; and (4) a

printed copy of Mr. Schober’s digital medical cannabis identification card.

14

These documents, also filed under seal, consisted of a series of evaluations

Mr. Schober had as a juvenile. They did not contain a diagnosis of PTSD.

6

a mental health professional, and Mr. Schober had provided no records to the court

confirming a PTSD diagnosis or documenting treatment for PTSD. Finally, Mr. Schober

had no plans for future treatment of his PTSD, which, the court observed, “is typically

treated by mental health professionals, not OB/GYN doctors.” The court advised Mr.

Schober that he could file a revised motion to modify his probation conditions if he

addressed the court’s findings.

Mr. Schober filed a renewed motion to modify the conditions of his probation

in October 2022, with exhibits documenting diagnoses for cannabis abuse, cocaine abuse,

and PTSD made by his substance abuse therapist15 and providing his ongoing treatment

plan for therapy and peer recovery support sessions. At the hearing on Mr. Schober’s

motion, his counsel asked Mr. Schober’s substance abuse therapist for her opinion on

whether medical cannabis would help Mr. Schober’s PTSD. The therapist did not provide

an opinion as to whether medical cannabis would help Mr. Schober, instead stating “[a]s

far as my standpoint professionally, the use of any substance can potentially trigger

someone to want to use something stronger than just marijuana.”

15

The substance abuse therapist testified that she received her master’s

degree in addiction counseling in May 2022, and she was working toward a higher

certification. She was not licensed as a counselor when she treated Mr. Schober.

7

The circuit court denied Mr. Schober’s renewed motion to modify the

conditions of his probation. Based on the evidence presented, the court concluded that Mr.

Schober’s use of medical cannabis would not be in the best interests of his rehabilitation

and sentencing goals or community safety and would not deter his future criminality. The

court also found the validity of Mr. Schober’s medical cannabis card was questionable

because his PTSD diagnosis was certified by an OB/GYN, who normally would not treat

Mr. Schober for his cannabis use disorder, cocaine use disorder, or his PTSD. The court

memorialized its decision in an order dated January 6, 2023. This appeal followed.

II.

STANDARD OF REVIEW

Mr. Schober appeals from an order denying a motion to modify conditions

of probation.16 We have not definitively established the standard for our review of an order

addressing a motion to modify conditions imposed on probation. This Court settled the

discretionary nature of a circuit court’s imposition of probation conditions long ago. See

Syl. pt. 6, Louk v. Haynes, 159 W. Va. 482, 223 S.E.2d 780 (1976) (acknowledging circuit

court’s discretionary authority to impose conditions of probation). The same discretionary

standard should apply to the circuit court’s decision whether to modify conditions

previously imposed, such that our review of the court’s discretion is for an abuse of

16

Rule 32.1(b) of the West Virginia Rules of Criminal Procedure addresses

modification of probation.

8

discretion. See Potomac Comprehensive Diagnostic & Guidance Ctr., Inc. v. L.K. by

Young, 250 W. Va. 102, ___, 902 S.E.2d 434, 452 (2024) (“‘Ordinarily, when a circuit

court is afforded discretion in making a decision, this Court accords great deference to the

lower court’s determination. However, when we find that the lower court has abused its

discretion, we will not hesitate to right the wrong that has been committed.’” (quoting

Rollyson v. Jordan, 205 W. Va. 368, 379, 518 S.E.2d 372, 383 (1999))).

Other courts have applied an abuse of discretion standard when considering

a lower tribunal’s decision related to modification of probation conditions. See United

States v. Serrapio, 754 F.3d 1312, 1318 (11th Cir. 2014) (observing that denial of motion

to modify probation condition is reviewed for abuse of discretion); United States v. Grant,

715 F.3d 552, 556-57 (4th Cir. 2013) (acknowledging that district court’s decision whether

to modify probation conditions is reviewed for abuse of discretion); State v. Kishinevski,

No. 24-AP-052, 2024 WL 4182857, *2 (Vt. Sept. 13, 2024) (unpublished entry order)

(reviewing trial court’s decision on motion to modify probation conditions for abuse of

discretion); State v. Njoku, 246 A.3d 33, 37 (Conn. App. Ct. 2021) (applying abuse of

discretion standard when reviewing lower court’s denial of motion to modify probation);

Commonwealth v. Morales, 877 N.E.2d 938, 941 (Mass. App. Ct. 2007) (concluding judge

did not abuse discretion in denying motion to modify probation conditions). Accordingly,

this Court holds that we review a circuit court’s decision on a motion to modify conditions

of probation for an abuse of discretion.

9

To the extent we construe the Cannabis Act to resolve this appeal, our review

is plenary. “‘Interpreting a statute . . . presents a purely legal question subject to de novo

review.’ Syl. Pt. 1, in part, Appalachian Power Co. v. State Tax Dep’t, 195 W. Va. 573,

466 S.E.2d 424 (1995).” Syl. pt. 2, Freeland v. Marshall, 249 W. Va. 151, 895 S.E.2d 6

(2023).

III.

DISCUSSION

Mr. Schober raises one assignment of error. He contends that the circuit court

erred by denying his renewed motion to modify the conditions of his probation to allow

him to use medical cannabis after he qualified as a patient under the Cannabis Act,17 which,

he claims, violates his rights created by the Act. He argues that the circuit court failed to

apply principles of statutory construction to determine the scope of the Act, erroneously

basing its decision on a subjective twelve-factor test does not exist in West Virginia law or

jurisprudence and was “almost impossible, if not impossible” for him to meet. The State

responds that the circuit court did not abuse its discretion in denying Mr. Schober’s motion

17

Pursuant to the Cannabis Act, “‘Patient’ means an individual who: (A) Has

a serious medical condition; (B) Has met the requirements for certification under this act;

and (C) Is a resident of this state.” W. Va. Code § 16A-2-1(a)(22). Identification cards

issued to patients authorize their use of medical cannabis. See id. § 16A-5-1(a) (“An

identification card issued to a patient shall authorize the patient to obtain and use medical

cannabis as authorized by this act.”).

10

to use medical cannabis because probationers may not violate federal law and possession

of marijuana is illegal under federal law. We find no error.

The principle guiding our examination of the Cannabis Act instructs that

“The primary object in construing a statute is to ascertain and give effect to the intent of

the Legislature.” Syl. pt. 1, Smith v. State Workmen’s Comp. Comm’r, 159 W. Va. 108,

219 S.E.2d 361 (1975). Thus, “When a statute is clear and unambiguous and the legislative

intent is plain, the statute should not be interpreted by the courts, and in such case it is the

duty of the courts not to construe but to apply the statute.” Syl. pt. 5, State v. Gen. Daniel

Morgan Post No. 548, Veterans of Foreign Wars, 144 W. Va. 137, 107 S.E.2d 353 (1959).

Yet, “A statute that is ambiguous must be construed before it can be applied.” Syl. pt. 1,

Farley v. Buckalew, 186 W. Va. 693, 414 S.E.2d 454 (1992).

The Act outlines the availability of medical cannabis in West Virginia,

subject to enumerated conditions, and directs that, “Notwithstanding any provision of law

to the contrary, the use or possession of medical cannabis as set forth in this act is lawful

within this state.” W. Va. Code § 16A-3-2(a).18 See also id. § 16A-15-4(a)(1) (prohibiting

18

West Virginia Code § 16A-3-2(a)(1) to (8) lists the conditions imposed

upon the use of medical cannabis.

11

a patient from being “subject to arrest, prosecution or penalty in any manner, or denied any

right or privilege, . . . solely for lawful use of medical cannabis”).

Mr. Schober contends that, as a patient in possession of a medical cannabis

identification card pursuant to the Cannabis Act, his use of medical cannabis is lawful and

cannot be prohibited by a probation condition.19 He focuses on the language

“notwithstanding any provision of law to the contrary” in West Virginia Code

§ 16A-3-2(a), and argues that it “provides clear proof” that the Legislature intended the

Cannabis Act to supersede any contrary provision of West Virginia law, including West

Virginia Code § 62-12-9, which governs the conditions for release on probation. He is

correct that, as used in West Virginia Code § 16A-3-2(a), the phrase “notwithstanding any

provision of law to the contrary” signals the Legislature’s intent to supersede conflicting

law. See N.L.R.B. v. SW Gen., Inc., 580 U.S. 288, 302, 137 S. Ct. 929, 940, 197 L. Ed. 2d.

263 (2017) (“A ‘notwithstanding’ clause . . . shows which of two or more provisions

prevails in the event of a conflict.”); Field v. Napolitano, 663 F.3d 505, 511 (1st Cir. 2011)

(“‘[T]he use of . . . a “notwithstanding” clause clearly signals the drafter’s intention that

the provisions of the “notwithstanding” section override conflicting provisions of any other

19

See id. § 16A-3-2(a)(1)(A) (providing that medical cannabis may be

dispensed to “a patient who receives a certification from a practitioner and is in possession

of a valid identification card issued by the bureau”); id. § 16A-5-1(a) (addressing

identification cards and stating “[t]he bureau may issue an identification card to a patient

who has a certification approved by the bureau”).

12

section.’” (alteration in original) (quoting Cisneros v. Alpine Ridge Grp., 508 U.S. 10, 18,

113 S. Ct. 1898, 1903, 123 L. Ed. 2d. 572 (1993))).20

However, Mr. Schober’s analysis is flawed insofar as we find no conflict

between West Virginia Code § 16A-3-2(a), establishing the use of medical cannabis, and

West Virginia Code § 62-12-9, providing conditions for release on probation.21 Statutes

generally conflict when they “‘are explicitly contrary to, or inconsistent with, each other.’”

Off. of Hawaiian Affs. v. Kondo, 528 P.3d 243, 251 (Haw. 2023) (quoting Boyd v. Haw.

State Ethics Comm’n, 378 P.3d 934, 943 (Haw. 2016)). See also Gomez v. Walker, 540

P.3d 936, 941 (Colo. App. 2023) (concluding that statutes “cannot be harmonized and are

in conflict”), cert. granted in part en banc, No. 23SC755, 2024 WL 966206 (Colo. Mar. 4,

2024); Conflict, Webster’s Third New International Dictionary (unabridged ed. 1970) (“to

show variance, incompatibility, irreconcilability, or opposition”).

20

See also Meier v. Pub. Sch. Emps.’ Ret. Sys., 997 N.W.2d 719, 726 (Mich.

Ct. App. 2022) (“[W]hen two statutory provisions conflict, one of which contains

‘notwithstanding any other provision’ language, the provision with the ‘notwithstanding’

language controls.”), appeal denied, 985 N.W.2d 516 (Mich. 2023) (mem); Whole

Woman’s Health v. Jackson, 642 S.W.3d 569, 579 (Tex. 2022) (“‘[N]otwithstanding’

language [used in Texas Health & Safety Code provision] confirms that the . . . provisions

control over ‘any other law’ that may conflict with its provisions.”).

21

Furthermore, the existence of an apparent conflict would not necessarily

require us to conclude that the Cannabis Act applies to the exclusion of West Virginia Code

§ 62-12-9. “Where two statutes are in apparent conflict, the Court must, if reasonably

possible, construe such statutes so as to give effect to each.” Syl. pt. 4, in part, State ex rel.

Graney v. Sims, 144 W. Va. 72, 105 S.E.2d 886 (1958).

13

West Virginia Code § 62-12-9(a)(1) to (6) sets out mandatory conditions for

probation, and West Virginia Code § 62-12-9(b) permits a circuit court to impose other

conditions “which it may determine advisable.” Id. Imposing a probation condition

pursuant to this authority does not criminalize the subject of the condition or otherwise

conflict with statutes or even constitutional provisions providing that those activities are

lawful. Courts regularly impose conditions on probation that forbid otherwise lawful

conduct and even invade a probationer’s constitutional rights. See Griffin v. Wisconsin, 483

U.S. 868, 874, 107 S. Ct. 3164, 3169, 97 L. Ed. 2d. 709 (1987) (acknowledging that

“probation conditions authorized in federal system include requiring probationers to avoid

commission of other crimes; to pursue employment; to avoid certain occupations, places,

and people; to spend evenings or weekends in prison; and to avoid narcotics or excessive

use of alcohol” (citing 18 U.S.C. § 3563)).22

22

See also United States v. Krauss, No. CR 23-34 (JEB), 2023 WL 7407302,

at *4 (D.D.C. Nov. 9, 2023) (“Probationers’ liberties are restricted in areas from

search-and-seizure protections to associational rights to bodily autonomy.”); United States

v. Tonry, 605 F.2d 144 (5th Cir. 1979) (finding condition limiting probationer’s right to

participate in political activity did not offend statutory or constitutional law where

probationer pled guilty to four misdemeanor violations of the Federal Election Campaign

Act), abrogated on other grounds as recognized by Phillips v. City of Dallas, 781 F.3d

772, 778 (5th Cir. 2015); Meyer v. State, 128 A.3d 147, 164 (Md. Ct. Spec. App. 2015)

(“[A] sentencing judge may impose a particular standard of conduct for a defendant to

follow while on probation that includes prohibiting the defendant from operating a motor

vehicle[.]”). Courts may impose these conditions because “Inherent in the very nature of

probation is that probationers ‘do not enjoy “the absolute liberty to which every citizen is

entitled.”’” United States v. Knights, 534 U.S. 112, 119, 122 S. Ct. 587, 591, 151 L. Ed. 2d.

497 (2001) (quoting Griffin v. Wisconsin, 483 U.S. 868, 874, 107 S. Ct. 3164, 3169, 97

L. Ed. 2d. 709 (1987)). They retain “‘only . . . conditional liberty properly dependent on

14

Just as reasonable conditions restricting a probationer’s association with

certain persons does not conflict with the Constitution’s guarantee of free association,23

prohibiting Mr. Schober’s use of medical cannabis through a probation condition imposed

pursuant to West Virginia Code § 62-12-9 does not conflict with West Virginia Code

§ 16A-3-2(a), and the “notwithstanding” clause in the latter provision does not apply. See

Carmichael v. Bd. of Land & Nat. Res., 506 P.3d 211, 231 (Haw. 2022) (finding

“notwithstanding” clause did not nullify a non-conflicting statute); Henderson v. Bus. Loop

Cmty. Improvement Dist., 588 S.W.3d 896, 905 (Mo. Ct. App. 2019) (observing that

“notwithstanding” clause “‘does not create a conflict, but eliminates the conflict that would

have occurred in the absence of the clause’” and giving no effect to such clause in absence

of conflict (quoting Earth Island Inst. v. Union Elec. Co., 456 S.W.3d 27, 34 (Mo. 2015)

(en banc))).

observance of special [probation] restrictions.’” Griffin, 483 U.S. at 874, 107 S. Ct. at 3169,

97 L. Ed. 2d. 709 (alterations in original) (quoting Morrissey v. Brewer, 408 U.S. 471, 480,

92 S. Ct. 2593, 2600, 33 L. Ed. 2d. 484 (1972)).

23

See Anderson v. State, 684 S.W.3d 296 (Ark. Ct. App. 2024) (finding

probation conditions restricting probationer’s contact and relationships with certain

persons do not violate his freedom of association because they bear a reasonable

relationship to crime committed and preventing probationer from reoffending); People v.

Hammons, 138 N.E.3d 31 (Ill. App. Ct. 2018) (commenting that probation condition

forbidding probationer convicted of burglary and theft from associating with people

convicted of drug offenses is reasonably related to avoiding future criminality and did not

infringe on freedom of association as burglary and theft are often motivated by drug habit);

cf. Doss v. State, 961 N.W.2d 701, 718 (Iowa 2021) (addressing parole condition and

acknowledging that “freedom [of association] is not absolute, as restrictions on the rights

of parolees to associate with certain categories of people are a recognized part of the

criminal justice system”).

15

Mr. Schober further contends that requiring him to refrain from using

marijuana as a condition of his probation is contrary to West Virginia Code § 16A-15-4(a),

under which a “patient” may not be “subject to arrest, prosecution or penalty in any manner,

or denied any right or privilege . . . solely for lawful use of medical cannabis.” (Emphasis

added). We disagree. Probation conditions generally focus on goals such as rehabilitation,

deterring criminal behavior, and protecting the public.24 The consequences of violating a

probation condition are not based solely on the conduct that caused the violation.25 That

24

See State v. Lucas, 201 W. Va. 271, 280, 496 S.E.2d 221, 230 (1997)

(observing rehabilitative purpose of a probation condition); Louk, 159 W. Va. at 495, 223

S.E.2d at 789 (commenting, “it may be entirely proper, considering the nature of the crime,

to isolate and insulate the defendant from certain temptations”); State ex rel. Strickland v.

Melton, 152 W. Va. 500, 506, 165 S.E.2d 90, 94 (1968) (“[P]robation is simply one of the

devices of an enlightened system of penology which has for its purpose the reclamation

and rehabilitation of the criminal.”); cf. U.S. v. Webster, No. CRIM. RWT-08-397, 2009

WL 2366292, at *5 (D. Md. July 30, 2009) (“A court may impose discretionary conditions

of probation to the extent that such conditions (1) are reasonably related to the nature and

circumstances of the offense and the history and characteristics of the defendant; and (2)

involve deprivations reasonably necessary to serve the following purposes of the

sentence—to reflect the seriousness of the offense, promote respect for the law, provide

just punishment, deter the prohibited conduct, and protect the public from further crimes

of the defendant.”); 6 Wayne R. LaFave, et al., Criminal Procedure § 26.9(b) (4th ed. 2015

& Supp. 2023-2024) (stating “probation conditions not otherwise expressly authorized by

statute must be reasonably related to the offense involved, the rehabilitation of the

defendant, the protection of the public, or another legitimate punitive purpose”).

25

See Solely, Webster’s Third New International Dictionary (unabridged ed.

1970) (defining “solely” as “singly, alone” and “to the exclusion of alternate or competing

things”); see also Syl. pt. 6, in part, State ex rel. Cohen v. Manchin, 175 W. Va. 525, 336

S.E.2d 171 (1984) (“Undefined words and terms used in a legislative enactment will be

given their common, ordinary and accepted meaning.”).

16

conduct also must violate a parole condition,26 and the resulting penalty often relates back

to the probationer’s underlying crime. See Alabama v. Shelton, 535 U.S. 654, 662, 122

S. Ct. 1764, 1770, 152 L. Ed. 2d. 888 (2002) (“A suspended sentence is a prison term

imposed for the offense of conviction. Once the prison term is triggered, the defendant is

incarcerated not for the probation violation, but for the underlying offense.”); State v.

Robbins, 215 A.3d 788, 794 (Me. 2019) (observing that “a probation violation . . . is

conduct that results in the implementation of punishment previously imposed as part of an

underlying criminal judgment”).27 Because any sentence or confinement imposed for

violating a probation condition by using or possessing marijuana would not be “solely for

lawful use of medical cannabis,” such a condition of probation does not violate the

Cannabis Act. W. Va. Code § 16A-15-4(a) (emphasis added).

26

West Virginia Code § 62-12-10 provides the sentences or confinements

that may be imposed for probation violations.

27

See also Medina v. State, 418 P.3d 861, 864 (Alaska Ct. App. 2018)

(“[P]robation revocations relate back to the underlying criminal offense, constituting

‘continuing punishment for the crime for which probation was originally imposed.’”

(quoting Demientieff v. State, 814 P.2d 745, 747 (Alaska Ct. App. 1991))); State v. Smith,

540 A.2d 679, 692-93 (Conn. 1988) (“The element of ‘punishment’ in probation

revocation . . . is attributable to the crime for which [probationer] was originally convicted

and sentenced. Thus, any sentence this defendant had to serve as the result of the violation

of the special condition was ‘punishment’ for the crime of which he had originally been

convicted. Revocation is a continuing consequence of the original conviction from which

probation was granted.”).

17

Based on the foregoing analysis, we hold that the West Virginia Cannabis

Act, West Virginia Code §§ 16A-1-1 to -16-1, does not supersede West Virginia Code

§ 62-12-9 or prevent a circuit court from requiring a probationer to refrain from using

marijuana as a condition of his or her release on probation, even when the probationer has

qualified as a “patient” and obtained an identification card pursuant to the Cannabis Act.

We similarly find the circuit court’s consideration of evidence related to the

twelve factors for which the court required evidence was a proper exercise of the court’s

discretion in considering a motion to modify probation conditions. “W. Va. Code, 62-12-9,

as amended, permits a trial judge to impose any conditions of probation which he may

deem advisable, but this discretionary authority must be exercised in a reasonable manner.”

Syl. pt. 6, Louk, 159 W. Va. 482, 223 S.E.2d 780. Thus, circuit courts have broad discretion

to impose reasonable probation conditions. See W. Va. Code § 62-12-9(b) (permitting a

circuit court to impose any conditions “it may determine advisable”). To inform its decision

whether to modify Mr. Schober’s probation conditions to allow his use of medical

cannabis, the circuit court requested evidence concerning the reliability of Mr. Schober’s

diagnosis; his efforts, if any, to resolve his PTSD without resorting to medical cannabis;

the success of any such efforts; and the availability of alternate treatments. The court’s

request further allowed it to account for Mr. Schober’s criminal record, particularly

offenses involving controlled substances; his diagnoses for substance use disorders; other

medical conditions that his use of medical cannabis might affect; and the impact Mr.

18

Schober’s use of cannabis might have on the objectives for his probation, i.e.,

rehabilitation, sentencing goals, community safety, and deterring criminal behavior.

Contrary to Mr. Schober’s characterization, this evidence was not a “test” that was

impossible to pass. Rather, the court requested evidence relevant to its consideration of Mr.

Schober’s motion seeking to modify his probation conditions, and the court did not abuse

its discretion by requesting this information.28 Cf. State ex rel. Dunlap v. McBride, 225

W. Va. 192, 202, 691 S.E.2d 183, 193 (2010) (per curiam) (addressing whether evidence

was properly admitted during the penalty phase of a trial and observing that “‘[a] trial court

has wide discretion in the sources and types of evidence used in determining the kind and

extent of punishment to be imposed’” (alteration in original) (quoting Elswick v. Holland,

623 F. Supp. 498, 504 (S.D.W .Va. 1985))).

Finally, we find no error in the circuit court’s denial of Mr. Schober’s

renewed motion to modify the conditions of his probation to allow his use of medical

cannabis because West Virginia Code § 62-12-9(a)(1) requires, in plain language, that

“[r]elease on probation is conditioned upon the following: (1) That the probationer may

not, during the term of his or her probation, violate any criminal law of this or any other

28

We recited the twelve factors relied on by the circuit court only to discuss

their relationship to that court’s exercise of discretion in this instance. By finding that the

court acted within its broad discretion and imposed a reasonable probation condition, we

do not impose on circuit courts considering a similar probation condition any obligation to

use the twelve factors that were employed in this case.

19

state or of the United States.” (Emphasis added). The federal Controlled Substances Act

prohibits the possession of marijuana for any reason. See 21 U.S.C. § 844 (outlawing

knowing or intentional possession of a controlled substance); Id. § 812, Schedule I, (c)(10)

& (17) (establishing “marihuana” and THC as controlled substances). Because Mr.

Schober’s possession of medical cannabis would violate federal law, the possession would

also violate the probation condition imposed by West Virginia Code § 62-12-9(a)(1). See,

e.g., Commonwealth v. White, No. CR20A-173-01, 110 Va. Cir. 433, 2022 WL 19782608

(Va. Cir. Ct. 2022) (denying defendant’s request to modify conditions of supervised

probation to allow use of marijuana prescribed to treat PTSD, explaining “The Defendant

may qualify under state law to possess marijuana for medicinal purposes, however, any

possession of marijuana violates federal law, including, without limitation, the Supremacy

Clause of the United States Constitution and the [Controlled Substances Act]”).

IV.

CONCLUSION

Finding no abuse of discretion, we affirm the January 6, 2023 order of the

Circuit Court of Berkeley County, denying Mr. Schober’s renewed motion to modify his

probation conditions.

Affirmed.

20